# Petition — Andrews v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0945%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 817 ## Text Office - Supreme Court, US. rtLeae 82-1846 MAY 13 1983 ALEXANDER L. STEVAS, CLERK No. IN THE SUPREME COURT OF THE UNITED STATES October Term, 1982 RONALD W. ANDREWS, M.D.., Petitioner U. UNITED STATES OF AMERICA, Respondent Petition for Writ of Certiorari to the United States Court of Appeals for the Third Circuit. Richard M. Meltzer, Esquire MALIS, TOLSON & MALIS Suite 305 Six Penn Center Plaza Philadelphia, PA 19103 (215) 665-9111 Counsel for Petitioner THE LEGAL INTELLIGENCER, 10th & SPRING GARDEN STREETS, PHILA, PA. 19123 (215) 236-2000 QUESTION PRESENTED 1. Was Petitioner deprived of his Fifth and Sixth Amendment Constitutional rights as a result of an in- dictment charging a physician with a violation of Title 21 United States Code §841(a)(1), but which indict- ment failed to include the essential allegation that the controlled substances distributed lacked a legitimate medical purpose or were distributed beyond the course of professional practice? INDEX Page BR OG eBoy Og a dt es i OPINIUNS OF fre COURT BELOW ......... 2 er ee ene 2 EY PUR GS ae sk eee eer 2 mem eeeeeree Gr fein, CASE .... 2.5 6...025:. 3 REASONS RELIED ON FOR ALLOWANCE OF i i ei ee cee 5 Certiorari is essential to prevent grave injustice to the Petitioner as Petitioner was deprived of his Fifth and Sixth Amendment rights under the United States Con- stitution as the decision of the Third Circuit Court of Ap- peals is contrary to the decisions of the Fifth Circuit Court of Appeals enunciated in United States v. Outler, 659 F.2d 1306 (5th Cir. 1981) and the Ninth Circuit Court of Appeals announced in United States v. Deal, 587 F.2d 956 (9th Cir. 1978) and is contrary to the policy of the United States Supreme Court as pronounced in United States v. Moore, 423 U.S. 122 (1975), which all provide that an essential element of the offense charging a physician with a violation of 21 U.S.C. 841(a)(1) is that the prescription was dispensed or distributed without a legitimate medical reason. ee a 8 APPENDIX A — Statutes Involved ............ A-1 APPENDIX B — Final Judgment of Eastern District ee ee ee A-2 APPENDIX C — Court of Appeals Judgment Order A-4 APPENDIX D — Court of Appeals Petition for a A-6 TABLE OF CASES CITED Page Law ( United States v. Deal, 587 F.2d 956 (9th Cir. 1978) 5. United States v. Moore, 423 U.S. 122 (1975). 5.6. United States v. Outler, 659 F.2d 1306 (5th Cir. Sea) 4... ee ee 5 United States v. Roya, 576 F.2d 386 (7th Cir. 1978) United States v. Seelig, 622 F.2d 207 (6th Cir.), cert. denied 449 U.S. 869 (1980) .......... ~] ~ STATUTES CITED Page ee Oe, OT gee ccc, i, 2, 3,3,.6 Oe icc eek 2 ill eT IN THE SUPREME COURT OF THE UNITED STATES October Term, 1982 RONALD W. ANDREWS, M.D.., Petitioner V. UNITED STATES OF AMERICA, Respondent PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT To The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States: Petitioner, Ronald W. Andrews, respectfully prays that a Writ of Certiorari issue to review the Judgment Order of the United States Court of Appeals for the Third Circuit, entered in the above case on March 14, 1983, affirming the Order of the United States District Court for the Eastern District of Pennsylvania in favor of Re- spondent, United States of America, and against Peti- tioner, Ronald W. Andrews. l 2 OPINIONS OF THE COURTS BELOW The United States Court of Appeals for the Third Circuit entered a Judgment Order on March 14, 1983 af- firming the Judgment of conviction and sentence of the United States District Court for the Eastern District of Pennsylvania of July 1, 1982. The United States Court of Appeals for the Third Circuit thereafter entered an Or- der denying Petitioner's Petition for Rehearing on April 7, 1983. No specific reasons were given for either the deci- sion of March 14, 1983 or April 7, 1983. JURISDICTION The Judgment Order of the Court of Appeals for the Third Circuit affirming the Judgment of the United States District Court for the Eastern District of Pennsyl- vania was entered on March 14, 1983 and is printed, infra (Appendix C, p.A-4). The Order of the United States Court of Appeals for the Third Circuit denying Pe- tition for Rehearing was entered on April 7, 1983 and is printed, infra (Appendix D, p. A-6). The jurisdiction of this Court is invoked under 28 U.S.C.A. §1254(1). STATUTES INVOLVED The specific statutory provision involved is Title 21] United States Code §841(a)(1) and is printed, infra, Ap- pendix A, p. A-1. 3 STATEMENT OF THE CASE On April 6, 1982, petitioner, Ronald W. Andrews, M.D.. was indicted in the Eastern District of Pennsylva- nia in a 31 count superseding indictment charging him with violations of Title 21 United States Code, Section 841(a)(1). Except for the dates, quantity, and description of the prescription for the controlled substance, each count contained the same allegation. A sample of a count in the indictment is contained below: “That on or about August 14, 1980, at Philadel- phia, in the Eastern District of Pennsylvania, RONALD W. ANDREWS knowingly and_ intentionally did unlawfully dispense and distribute 50 tablets of Seconal, con- taining secobarbital, a Schedule II non-narcotic controlled substance. In violation of Title 21, United States Code, Section 841(a)(1). Title 21 U.S.C. §841(a)(1) provides, in part: (a) “Except as authorized by this subchapter, it shall be unlawful for any person knowingly or inten- tionally, (1) to manufacture, distribute, or dispense or possess with intent to manufacture, distribute or dispense a controlled substance. .. .” Following a jury trial on May 10, 1982, petitioner was convicted on 9 of the 3i counts and was sentenced to imprisonment for a term of three (3) years, a special parole term of two (2) years, and probation of three (3) years. The Government's evidence was presented through the testimony of two (2) undercover agents and the Gov- ernment’s expert medical witness, Dr. George Woody. The two undergover agents presented evidence concern- ing their conversations with the petitioner in his medical 4 office including the medical treatment. history, and ad- vice given by the petitioner. In regard to the tesumony of Dr. George Woody, the Government for the first time presented an offer of proof that it was necessary to prove that the conduct of the pe- titioner was outside the course of his protessional prac- tice. Dr. Woody then testified to procedures normally conducted in the usual course of a professional medical practice before prescribing drugs, reasons for prescrib- ing certain drugs, and expressed an opinion as to the usual course of medical practice concerning the pre- scriptions with which the petitioner was charged with dispensing and distributing in violation of the law. During his charge to the Jury, the trial judge in- structed the jury that an essential element of the offense was that the Government was required to prove the ac- tions of the petitioner were outside the scope of his pro- fessional practice and that the prescriptions were distrib- uted or dispensed other than for a legitimate medical purpose Following the petitioner’s sentence. he timely filed an appeal to the Third Circuit Court of Appeals with new counsel, which appeal was denied on March 14, 1983. Petitioner filed a petition for rehearin g which was denied on April 7, 1983. The issue presented by this petition concerns whether petitioner’s Constitutional rights were violated because the indictment failed to allege that the prescrip- tions were dispensed with a lack of a legitimate medical purpose, which is an essential element of the offense. Since there were no pre-trial motions filed to dismiss the indictment for lack of sufficiency, there is no evidence that either the petitioner or his original counsel would have been aware that the Government had to prove this essential element. Petitioner was deprived of his Fifth and Sixth Amendment Constitutional rights as a result of an in- 2) dictment charging a physician with a violation of Title 21 United States Code §841(a)(1), but which indict- ment failed to include an essential allegation that the prescriptions dispensed or distributed lacked a legiti- mate medical purpose or were done so beyond the course of professional practice. REASONS RELIED ON FOR ALLOWANCE OF THE WRIT CERTIORARI IS ESSENTIAL TO PREVENT GRAVE INJUSTICE TO THE PETITIONER AS PETI- TIONER WAS DEPRIVED OF HIS FIFTH AND SIXTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AS THE DECI- SION OF THE THIRD CIRCUIT COURT OF AP- PEALS IS CONTRARY TO THE DECISIONS OF THE FIFTH CIRCUIT COURT OF APPEALS ENUNCI- ATED IN UNITED STATES v. OUTLER, 659 F.2d 1306 (Sth Cir. 1981) AND THE NINTH CIRCUIT COURT OF APPEALS ANNOUNCED IN UNITED STATES v. DEAL, 587 F.2d 956 (9th Cir. 1978) AND IS CON- TRARY TO THE POLICY OF THE UNITED STATES SUPREME COURT AS PRONOUNCED IN UNITED STATES v. MOORE, 423 U.S. 122 (1975), WHICH ALL PROVIDE THAT AN ESSENTIAL ELEMENT OF THE OFFENSE CHARGING A PHYSICIAN WITH A VIOLATION OF 21 U.S.C. 841(a)(1) IS THAT THE PRESCRIPTION WAS DISPENSED OR _ DISTRIB- UTED WITHOUT A LEGITIMATE MEDICAL REA- SON. In the case of the United States v. Outler, 659 F.2d 1306 (Sth Cir. 1981), this same issue was raised before the Fifth Circuit Court of Appeals. In that case the de- fendant physician was indicted for the same violation as in this case and the issue presented was “whether a grand jury indictment which charges a physician with prescribing drugs in violation of 21 U.S.C., 841(a)(1) 6 must allege that the prescription lacked a legitimate medical reason? . . . For the following reason, we believe that the lack of a legitimate medical reason is an essen- tial element of this offense and, therefore. must be al- leged in the indictment.” p. 1309 The Court states: “This Court, however, repeatedly has held since Moore that it is incumbent upon the govern- ment to prove the lack of a legitimate medical rea- son in order to convict a registered physician of dispensing drugs in violation of 21 U.S.C. §841(a). [citations omitted] We now conclude that this ele- ment is essential to a charge of the offense. We rec- ognize that an element is not always an ‘essential element’ simply because the prosecution carries the burden of proof; however, here the element em- bodies the culpability of the offense. Without behav- ior beyond professional practice, there is no crime. We believe, therefore, that the lack of a legitimate medical reason is as essential to the offense charged against Dr. Outler as the requisite Mens rea.” (p.1310) This decision was also premised upon the conclu- sion that the defendant’s Fifth and Sixth Amendment rights were violated. The defendant’s Fifth Amendment right guaranteeing the right to a proper grand jury in- dictment was violated since one could only speculate whether or not the grand jury was able to properly deter- mine probable cause without this essential element. The Fifth Circuit did not believe that the defendant’s Sixth Amendment rights were violated to the extent he had been unable to prepare a full defense to avoid surprise at trial, since his counsel had moved to dismiss the perti- nent counts of the indictment for failure to contain this essential allegation. This distinction is critical since Peti- tioner never raised this motion and may not have been f aware of this essential element until trial. The Govern- ment should not be permitted to exploit its patently de- fective indictment by any contention of waiver. The Ninth Circuit Court of Appeals also confronted this issue in U.S. v. Deal, 587 F.2d 956 (9th Cir. 1978). In that case, the indictment failed to charge an essential element of the offense i.e., lack of authorization to dispense. The court reversed the physician’s conviction by holding that “lack of authorization to distribute or dispense controlled substances is an element of the crime. .. . The most liberal reading of the indictment does not reflect an allegation that Deal acted outside of the scope of the medical exception.” p. 963. These decisions are in apparent conflict with some other Circuits which have confronted this issue. In U.S. v. Roya, 576 F.2d 386 (7th Cir. 1978) the Seventh Cir- cuit has ruled that the lack of a legitimate medical pur- pose is not an essential element of the offense stated in §841(a) (1). This decision appears to be no more than dicta. See also U.S. v. Seelig, 622 F.2d 207 (6th Cir. ), cert. denied 449 U.S. 869 (1980). It is essential that this issue be decided by this Court to obtain uniformity of indictments in all Circuits when a physician is charged with this offense. This Court should also consider the issue for clarification as to the application of its ruling in U.S. v. Moore, 423 U.S. 122 (1975) to the sufficiency of an indictment. One should not be burdened with uncertainty of the essential elements of the offense to be presented against a defendant like petitioner, a professional practitioner. Speculation as to the adequacy of his preparation of a de- fense or to the initial decision of the grand jury in return- ing a defective indictment must not be permitted and countenanced. All future indictments must be uniform in charges of this nature and only this Court is able to demand such uniformity so that future defendants in a position as that of Petitioner herein can be adequately and fully protected in defending such charges. 8 CONCLUSION Petitioner's conviction resulted from an indictment which failed to contain an essential element of the of- fense. The element strikes at the core of the prosecu- tion's case against the Petitioner. a physician charged with unlawfully dispensing or distributing controlled substances. The allegation that the physician’s conduct occurred without a legitimate medical reason is required in some, but not all Circuits. Uniformity is essential to protect all similar defendants. Accordingly, Certiorari should be granted, and the conviction below reversed. Respectfully submitted. Richard M. Meltzer. Esquire Counsel for Petitioner APPENDIX A Title 21 U.S.C. 841(a) (1). Prohibited acts A. Unlawful acts (a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or... A-1 United States ok Aste Vs. a as | United States District Court fo A-2 EASTERN DISTRICT OF PENNSYLVANIA DEFENDANT L—_ RONALD W, ANDREWS | APPENDIX B_ vocketno. LCR, 81-00353 RSS A Here Rey SBS GAL SLATS tS Teac iia eet whe tree Bair ph GPEe codes 0 SY ia ie aa ale Wei ek ae ea hee ae ee ee ne eho PE pee ae BA. “E: De R LX f / ‘ Ei; oP Ais ally ti wee tees SUBGMENT AND’ RROBATION/COMMITMENT: ORDER 2) aa 249 0/1) eae In the presence of the attorney for the goOvernmMenL p5 MONTH DAY YEAR Marinari, USq- yy June 30 1982 b COUNSEL L__jJ WITHOUT COUNSEL However the court advised defendant of right to counsel and asked whether defendant desired to have counsel appointed by the court and the defendant thereupon waived assistance of counsel. sAR iwc. 61... Sicherd M. Meliuet, Bee... is ck. llr (Name of counsel) the defendant appeared in person on this date L__J GUILTY, and the court being satisfied that | ___ J NOLO CONTENDERE, ) NOT GUILTY PLEA there is a factual basjs for the pica, There being a finding/verdict of Lx) GUILTY. Defendant has been convicted as charged of the offense(s) of Dispensing eo: controlled substances, FINDING & Lin violation of Title 21, United States Code, Section 841(a) (1) JUDGMENT J “\.) The court asked whether defendant had anything to say why judgment should not be pronounced. Because no sufficient cause to the contrary was shown, or appeared to the court, the court adjudged the defendant guilty as charged and convicted and ordered that: The defendant i hereby committed_to the aes, the Attorney General or his authorized representative for imprisonment for a period of THREE (3) sentence | YEARS/°"1n°addition, there is a special parole term of TWO (2) YEARS OR >imposed on Count 16. On Count 20, the defendant is hereby committed PROBATION | to the custody of the Attorney General or his authorized representative ORDER for imprisonment for a period of THREE (3) YEARS and in addition, there is imposed a special parole term of TWO (2) YEARS, said sentence shall run concurrently with sentence imposed on Count 16, special | On Count 21, imposition of sentence as to imprisonment only is suspende CONDITIONS | and the defendant is placed on probation for a period of THREE (3) YEAR i to begin and commence at the termination of any and all sentences of imprisonment and upon termination of the special parole term. On Count 22, imposition of sentence as to imprisonment only is suspende and the defendant is placed on probation for a period of THREE (3) Yu apoitiona, | tO begin and commence at the termination of any and all sentences of CONDITIONS In addition to the special conditions of probation imposed above, it is hercby ordered that the general conditions of probation set out on the OF reverse side of this judgment be imposed. The Court may change the conditions of probation, reduce or extend the period of probation, and at any time during the probation period or within a maximum probation period of five years permitted by law, may issue a warrant and revoke PROBATION probation for a violation occurring during the probation period. LJ NOT GUILTY. Defendant is discharged > The court orders commitment to the custody of the Attorney General and recommends, it is ordered that the Clerk deliver a certified copy of this judgmeni COMMITMENT and commitment to the U.S, Mar- RECOMMEN- shal cr other qualified officer. - DATION : CERTIFIED AS A TRUE COPY ON SIGNED BY THIS ore fuuley l / Kj L Soe” Want ul onl, AOE NC Donald W. VanArtsdalen owe June 30, 1982 | OQ deputy U.S.A. v. RONALD W, _ \DREWS A-3 _ €R, 81-00353 of imprisonment and upon termination of the special parole term, said sentence shall run concurrently with sentence imposed on Count 21, On Count 23, imposition of sentence as to imprisonment only is suspended and the defendant is placed on probation for a period of THREE (3) YEARS to begin and commence at the termination of any and all sentences of imprisonment and upon termination of the special parole term, said sentence to run concurrently with sentence imposed on Count 21, On Count 25, defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of THREE (3) YEARS and in addition, there is imposed a special parole term of TWO (2) YEARS, said sentence to run concurrently with sentence imposed on Count 16. On Count 26, imposition of sentence as to imprisonment only is suspended and the defendant is placed on probation for a period of THREE (3) YEARS to run concurrently with term of probation on Count 21; said term of probation to commence on the termination of any and all sentences of imprisonment and the term of any special parole. On Count 27, defendant is committed to the custody of the Attorney Genera for imprisonment for a period of THREE (3) YEARS and in addition, there i imposed a special parole term of TWO (2) YEARS to run concurrently with sentence on Count 16, On Count 28, defendant is committed to the custody of the Attorney Genera or his authorized representative for imprisonment for a period of THREE ( YEARS and in addition, there is imposed a special parole term of TWO (2) YEARS to run concurrently with sentence on Count 16. * A-4 APPENDIX C UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 82-1407 UNITED STATES OF AMERICA v. RONALD W. ANDREWS, Appellant (Criminal No. 81-00353-01 - E.D.Pa. ) District Judge: Honorable Donald W. VanArtsdalen Submitted Under Third Circuit Rule 12(6) March 9, 1983 BEFORE: SEITZ, Chief Judge, HIGGINBOTHAM and SLOVITER, Circuit Judges. JUDGMENT ORDER After consideration of the contention raised by ap- pellant, to-wit, that an indictment charging a physician with prescribing drugs in violation of Title 21 U.S.C. §841(a) (1) is insufficient if it fails to allege the drugs were dispensed with a lack of legitimate medical pur- pose or outside the course of his professional practice, it is A-5 ADJUDGED AND ORDERED that the judgment of the district court be and is hereby affirmed. By the Court, Chief Judge ALIEST: Chief Deputy Clerk DATED: March 14, 1983 A-6 APPENDIX D UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 82-1407 UNITED STATES OF AMERICA y RONALD W. ANDREWS. Appellant (Criminal No. 81-00353-01 - E..D.Pa. ) District Judge: Honorable Donald W. VanArtsdalen SUR PETITION FOR REHEARING PRESENT: SEITZ, Chief Judge, ADAMS. GIBBONS, HUNTER, WEIS, HIGGINBOTHAM., SLOVITER, BECKER, Circuit Judges. The petition for rehearing filed by Appellant in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the deci- sion having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the peti- tion for rehearing is denied. By the Court, Collins J. Seitz Chief Judge DATED: April 7, 1983 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0945%3A1. Public record. Not legal advice.